Special Leave Petition (Crl.) No. 4606 of 2011. Case: 1. Helios and Matheson Information Technology Ltd. and Ors., 2. Pawan Kumar Vs Special Leave Petition (Cri.) No. 4606 with 4672 of 2011. Supreme Court (India)
| Case Number | Special Leave Petition (Crl.) No. 4606 of 2011 |
| Counsel | For Appellant: K.K. Venugopal, Altaf Ahmed, Sr. Advs., Siddhartha Dave, Jemtiben AO, Vibha Datta Makhija, Ankur Tomer, Navkesh Betia and Sandeep Narain, Advs. and S. Narain and Co. |
| Judges | B.S. Chauhan and T.S. Thakur, JJ. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 190, 401, 202 |
| Citation | 2012 (1) ACR 1152 (SC), AIR 2012 SC 660, 2012 BomCR 727 (Cri), 2013 (3) CGLJ 189, 2012 CriLJ 1248, 2012 (1) JCC 513 (SC), JT 2011 (14) SC 293, 2012 (1) KLJ 331, 2012 MLJ 831 (Crl), 2012 (1) PLJR 179, 2012 (1) RCR 354 (Cri), RLW 2012 (2) SC 1669, 2011 (13) SCALE 536, 2012 (1) SCC 699, 2012 (1) UJ 200 |
| Judgement Date | December 16, 2011 |
| Court | Supreme Court (India) |
Judgment:
T.S. Thakur, J.
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These Special Leave Petitions arise out of an order dated 6th May, 2011, passed by the High Court of Judicature at Bombay in Criminal Revision Application No. 441 of 2008 whereby the High Court has set aside order dated 13th August, 2008 passed by the Additional Sessions Judge, Greater Bombay in Revision Applications No. 449, 460 and 853 of 2007 and restored that made by the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai taking cognizance of offences allegedly committed by the Petitioners.
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Respondent No. 1, Rajeev Sawhney filed Criminal Complaint No. 20/SW/2007 before Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, alleging commission of offences punishable under Sections 417, 420, 465, 467, 468, 471 read with Section 120B of Indian Penal Code by the Petitioners. The complaint set out the relevant facts in great detail and made specific allegations to the effect that Petitioners had entered into a conspiracy to defraud him and for that purpose Shri Pawan Kumar, arrayed as accused No. 4 in the complaint, had played an active role apart from fabricating a Board resolution when no such resolution had, in fact, been passed. On receipt of the complaint the Additional Chief Metropolitan Magistrate recorded prima facie satisfaction about the commission of offences punishable under Sections 417, 420, 465, 467, 468, 471, read with Section 120B of IPC, took cognizance and directed issuance of process against the accused persons. Aggrieved by the said order, Revision Petitions No. 449, 460, 853 of 2007 were filed by the accused persons before the Additional Sessions Judge, Greater Bombay, challenging the order taking cognizance and the maintainability of the complaint on several grounds. The revision petitions were eventually allowed by the Additional Sessions Judge, Greater Bombay by his order dated 13th August, 2008 and the summoning order set aside. The Additional Sessions Judge came to the conclusion that although the allegations regarding fabrication of a resolution, taken at their face value, made out a prima facie case of fraud against the accused persons yet the minutes of a subsequent meeting allegedly held on 19th July, 2005, a photocopy of which was filed along with Criminal Revision No. 460/2007 ratified the resolution allegedly passed on 28th June, 2005. The Court on that premise concluded that no fraud or cheating was made out against the accused persons. The Court observed:
The question is only in respect of the incident 28/06/2005 if this incident averred in the complaint is taken as it is without any more facts then certainly leads a prima facie case of playing fraud. However, in this case, it is seen from the record that the complainant had meeting on 19/07/2005, the minutes of the meeting are produced at page No. 293 in Criminal Revision No. 460/2007. This meeting and its minutes are not disputed. The relevant portion of the minutes on 19/07/2005 relevant for our purposes are as under:
Mr. Rajeev Sawhney has agreed to approve and sign the circular resolution for opening the Bank Account of VMoksha Mauritius with State Bank of Mauritius and obtaining the loan facility for the purposes of receiving the purchase consideration and remittance of the subscription money for the issue of preference shares in favour of VMoksha Mauritius with effect from the time of execution and exchange of the above Undertaking and the modification letter for the Escrow Arrangement.
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